Human Rights Botch: Vivanco & Venezuela

José Miguel Vivanco of Human Rights Watch today launched a media-attention-seeking attack on the Venezuelan government for a new law providing a process for impeachment of Supreme Court justices in that country. He held a press conference in Caracas, barking highly charged words in a report titled Venezuela: Judicial Independence Under Siege.

Vivanco and Human Rights Watch are now on record opposing a U.S.-modeled impeachment process for Supreme Court justices in Venezuela. The timing - two months before the August 15 referendum in that country - is obviously a partisan attempt to meddle in electoral politics.

Perhaps Vivanco and his bureaucrats should have done a little bit of research on the United States Constitution and American History before demonstrating such ignorance about democratic principles.

Before this essay is done, we will hear from Thomas Jefferson and Franklin Delano Roosevelt - whose stated principles on the appointment and impeachment of Supreme Court justices HRW has now gone against with this maneuver - on this question. But first let's consult a more recent U.S. president who spoke on this issue Gerald R. Ford
Four years before becoming president of the United States, Republican Congressman Gerald Ford spoke on the floor of the House of Representatives, calling for the impeachment, under the provisions allowed by the U.S. Constitution, of Supreme Court Justice William O. Douglas.

Ford said:

What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.

- Source: Congressional Record #11,913 (1970), 116th Congress

The title of the Human Rights Watch report creates an impression that, prior to the presidency of Hugo Chavez, Venezuela had "judicial independence." That is a knowingly false statement, because in the text of the report, Vivanco and HRW admit that it never has had it. Their cruel joke against human rights is revealed by the inflammatory, knowingly false, language they use against a new judicial reform law in Venezuela.

The HRW report claims:

The new law, which President Chávez signed last month, expands the Supreme Court from 20 to 32 members. It empowers Chávezs governing coalition to use its slim majority in the legislature to obtain an overwhelming majority of seats on the Supreme Court. The law also gives the governing coalition the power to nullify existing judges appointments to the bench.

Fact Check: The Venezuelan judicial impeachment process is virtually identical to that in the United States (a process about which the beltway-based Vivanco has been wholly silent for the entirety of his career). No authentic democracy can survive without the checks and balances that allow removal of court justices by Congress.

The United States constitution also provides for use of a "slim majority" to appoint Supreme Court Justices. (Remember the U.S. Senate battle over the nomination of Supreme Court Judge Clarence Thomas? Only fifty-percent plus one vote was required to install him: the same exact process that the hypocrite Vivanco attacks in Venezuela.).

With less than two months to go before the historic August 15th referendum (to recall or ratify the term of President Hugo Chavez: the voters will decide), Vivanco and Human Rights Watch's partisan political agenda stands naked. Instead of praising Venezuela for being the only country on earth that allows citizens to recall their president, and that has recently shown its commitment to that process, Vivanco is throwing tomatoes at a process that, although it exists in many other countries including the United States, he and his organization have remained totally silent about in other lands.

As the quote from former President Ford, above, reveals, the right to impeach U.S. Supreme Court justices for any "offense" that " of the House of Representatives considers it to be at a given moment in history." That is how a system of checks and balances works. Vivanco has thus harmed Human Rights Watch's credibility around the world with this latest grandstanding maneuver.

National Lawyers Guild vice president Nathan Newman wrote of this process in the United States:

In fact, over the course of American history, the House of Representatives has impeached fifteen individuals, including two Presidents, twelve judges, a senator, and a cabinet member. The Senate has convicted seven of the fifteen Most were impeached for acts of personal impropriety but a number of others have been impeached strictly for their official conduct. The early history of the Republic saw a number of politically-charged judicial impeachments.

Newman noted:

It is relatively clear that the framers of the Constitution saw impeachment as an important political check on the judicial branch. Notably, judges were to serve during "good behavior" subject to impeachment. During the Constitutional Convention, George Mason ignited the debate about what should constitute an impeachable offense under the Constitution. At first, the only proposed impeachable offenses were treason and bribery, but Mason believed that "attempts to subvert the Constitution may not be Treason" but should be recognized as an impeachable offense. Mason proposed that "maladministration" be added to the list of offenses but, after some debate, Mason replaced it with the phrase "other high Crimes and misdemeanors." The delegates then passed that recommendation eight to three without further debate.

Newman also notes that William Taft, the only man to serve as both Chief Justice of the Supreme Court and President of the United States, said:

Under the authoritative construction by the highest court of impeachment, the Senate of the United States, a high misdemeanor for which a judge may be removed is misconduct involving bad faith or wantoness [sic] or recklessness in his judicial actions, or in the use of his official influence for ulterior purposes. By the liberal interpretation of the term "high misdemeanor" which the Senate has given there is now no difficulty in securing the removal of a judge for any reason that shows him unfit.

Read the U.S. Constitution, Jose:

Article I, Section 2

Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3

Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

In plain English, that means that the U.S. House of Representatives may vote to "impeach" (that is to say, to hold a kind of trial seeking removal of any federal official, including Supreme Court justices). The "trial" is held in the Senate. The Vice President presides over the impeachment of any Supreme Court justice. The votes of two thirds of the senators present are required to remove the justice.

In fact, the great democrat Thomas Jefferson and his supporters utilized this Constitutional process to impeach Supreme Court justice Samuel Chase in 1804. Jefferson lost the vote in the Senate. And that is how the process works.

The same is true for Venezuela. The new provisions for impeachment of Supreme Court justices are in the letter and spirit of Jeffersonian democracy.

The other complaint by Vivanco and Human Rights Watch is that they oppose the effort by President Hugo Chavez and the Congress to expand the number of Supreme Court Justices from 20 to 32.

Rising in rebuttal, courtesy of audio archives, I call my first witness: President Franklin Delano Roosevelt of the United States, who valiantly tried to expand the number of U.S. Supreme Court justices. This testimony is from the transcript of Roosevelt's Fireside Chat radio program, on March 9, 1937. Roosevelt had proposed the retirement of Supreme Court judges at the age of 70, and if any judge chose not to retire at 70, an additional member would be added to the Court. For that, Roosevelt was accused of "packing" the Court:

What is my proposal? It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States

That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice, from the bottom to the top, speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.

The number of judges to be appointed would depend wholly on the decision of present judges now over seventy, or those who would subsequently reach the age of seventy

Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court and that a baneful precedent will be established

Is it a dangerous precedent for the Congress to change the number of the justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the administrations of John Adams and Thomas Jefferson - both of them signers of the Declaration of Independence - in the administrations of Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant.

It should be embarrassing enough to Human Rights Watch directors, members, and donors, that Vivanco now places the organization in direct historic opposition to human rights heroes like Thomas Jefferson and Franklin Delano Roosevelt. It's worse that he reveals complete ignorance on the true provisions of Venezuela's judicial reform.

As if the confrontations over the recall referendum and the paramilitary presence were not enough, pro-Chavez legislators have recently passed a highly controversial new Supreme Court law. Venezuela's 1999 constitution requires such a new law and also specifies that the entire judicial system is subordinated, not just procedurally, but also administratively to the Supreme Court. Most of the law's 29 articles are relatively uncontroversial. However, three provisions in the new law have raised the opposition's ire.

First, the new law increases the number of Supreme Court judges from 20 to 32. The opposition says that such an increase is unwarranted and that it would allow Chavez and his supporters to pack the court all over again, now that only half of the current judges appear to be sympathetic to the government. Government supporters, however, argue that the current number of judges is insufficient for the case load of the court and that the current number of judges corresponds to the old Supreme Court of the 1961 constitution which had only three chambers, while the new one has six.

Second, the new Supreme Court law allows judges to be named with s simple majority, should three previous efforts to name judges with the constitutionally required two-thirds majority fail. Here the opposition argues that this subverts the previous two-thirds majority requirement that the earlier Supreme Court law had set, allowing the legislature to name judges with a simple majority. Pro-Chavez legislators point out, though, that given the current impasse in the nearly evenly divided legislature, an escape hatch for naming judges must be found.

Besides, naming judges by simple majority is not all that unusual in the international context. U.S. Supreme Court judges, for example, do not need more than a simple majority.

Third, the new law allows the legislature to suspend judges who are accused of wrong-doing, until a trial is held. Also, should a judge be found to have lied about fulfilling the pre-requisites for being named a judge, that judge's naming may be reversed with a simple majority vote of the legislature. Here the opposition argues that this provision makes reduces the independence of judges because the legislature could threaten them with removal. This would certainly be the case if judges are named who do not fulfill all of the requirements set by the constitution or those who commit a crime.

However, this type of suspension or removal is not all that easy in that it depends upon the cooperation from another independent branch of the state, the attorney general's office. In other words, it hinges upon just how independent the judicial and the "moral"[3] branches are from each other. Structurally, according to the constitution, these branches are completely independent from each other, in that no other branch, such as the executive, can remove them at will.

Given the opposition's suspicion of any action that will give the government an advantage, especially in the Supreme Court, which is one of the last state bastions (besides the National Assembly) where the opposition still has an important share of power, it should not come as a surprise that they would do just about anything to stop the law. As a matter of fact, on several occasions the opposition organized exhausting 24-hour filibusters in their efforts to stop the law from passing.

It is difficult to identify to what extent the opposition's resistance to the Supreme Court law is born of a real fear of Venezuela becoming a "constitutional dictatorship" and to what extent it comes from protecting their "turf."

José Vivanco is either ignorant of United States law and the true provisions of Venezuela law, or he is being dishonest enough to "play along" with this latest smear campaign against Venezuela and its Bolivarian Constitution and democratically-elected government.

Vivanco and Human Rights Watch - a bureaucrat and an organization that both went AWOL during the April 2002 coup d'etat in Venezuela: HRW, with a cowardice that shall live in infamy, was completely silent on the abuses committed, crossing its fingers, hoping the coup would succeed, until the coup was over - would do better to invest their attention on real human rights abuses in this hemisphere: the tortures in Guantanamo Bay, for example, where the screams of the victims occur today and tonight, but cannot be heard through Jose Vivanco's partisan earplugs.

Instead, Vivanco is in Venezuela today, attacking that country in knowingly false and inflammatory terms for doing nothing more or less than what the host government of Human Rights Watch has wisely done in its own land for more than two centuries. If HRW were doing its job according to its stated mission, it would be supporting the new provisions in Venezuela, and instead using its multi-million dollar budget to call for the use of such time-honored impeachment provisions in the United States to remove the justices that imposed a Court-Appointed torturer to that country's highest office.

Heard or not, the screams continue today from Guantanamo, from Colombia, from the cell of Pacho Cortes in Bolivia, and not to mention from Iraq and so many other torture chambers throughout the world. How low does José Vivanco's cowardice go to further muzzle the sound of those screams by wasting his organization's time and money to create a media show across the Caribbean that only distracts from the real human rights crises in our hemisphere?

If anyone should be impeached from a job of arbitor or judge of anything in our América, it is José Miguel Vivanco.